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Since the U.S. Supreme Court issued its decision in South Dakota v. Wayfair, 138 S.Ct. 2080 (2018), this past summer reversing its long-standing “physical presence” nexus test under Quill Corp. v. North Dakota, 504 U.S. 298 (1992), businesses with contacts in New York have not had guidance on New York’s sales tax requirements going forward.

Pre-Wayfair ambiguity existed as to whether New York could enforce the collection of sales tax purely based on “economic nexus” against non-resident businesses despite a statute it already had on its books for 28 years because that statute arguably violated the U.S. Constitution under Quill.  Post-Wayfair, New York has now issued clear guidance that it will start enforcing this existing statute immediately and, based on its reputation of having the most advanced audit programs in the county, New York means business.

As discussed in our prior article analyzing Wayfair, for 25 years Quill had required physical presence by an out-of-state business for a state to impose an obligation to charge and collect sales tax from residents of that state.  In recent decades, pressure began to mount because of perceived unfairness to brick-and-mortar businesses and the proliferation of the online marketplace depriving states of much-needed revenue.  This culminated in several state campaigns to “Kill Quill.”

To challenge the Quill physical presence test in the Supreme Court, South Dakota and other states intentionally passed an “economic nexus” law requiring out-of-state sellers to collect sales tax if they derive revenue over a certain dollar threshold, or conduct a certain number of transactions in the state, without the requirement of having any physical presence in the state.  In South Dakota’s case, it was more than $100,000 of gross revenue derived from the state or more than 200 transactions conducted in the state in the prior or current calendar year.

While some states like New York passed similar laws before the decision in Wayfair, New Jersey did not pass one until after Wayfair was decided.  In fact, New Jersey was the first state post-Wayfair to pass its own statute on November 1, 2018 that exactly mimicked the requirements of the South Dakota statute.  In total, more than half of the U.S. states have now adopted similar economic nexus statutes.

New York enacted an economic nexus statute back in 1990 in Tax Law § 1101(b)(8)(iv) and regulations under NYCRR 20 §526.10(a)(6), requiring a vendor to remit sales tax if it: (a) conducts more than $300,000 of sales of tangible personal property delivered to New York, and (b) conducts more than 100 sales of tangible personal property in the state during the immediately preceding four sales tax quarters.  However, because the Quill constitutional physical presence test conflicted with this economic nexus law, New York sat quietly waiting to enforce it for the past almost 30 years.

Now post-Wayfair, while states like New Jersey passed new economic nexus legislation, practitioners started wondering what will New York do?  Will it enforce its long-standing but dormant economic nexus law, albeit not completely mirroring the thresholds in the South Dakota law expressly blessed by the Supreme Court?  Alternatively, will it, like other states, pass new legislation identical to South Dakota’s?

This week, on January 15, 2019, New York issued Notice N-19-1 and resolved these questions.  The Notice states, “Due to [Wayfair], certain existing provisions in the New York State Tax Law that define a sales tax vendor immediately became effective.”  As a result, it is anticipated that New York will begin to aggressively audit out-of-state businesses, similar to the wide nets cast by Washington and California to pull in substantial revenue from out-of-state sellers.

Note that the economic nexus thresholds supplement the physical nexus requirement that will continue to apply to New York businesses that fall under those thresholds.

It is not clear whether enforcement will be retroactive back to June 21, 2018 (the date of the Wayfair decision), some other date that New York may determine, or only effective as of the date of Notice N-19-1, or January 15, 2019.  There will also be nuances of calculating the amount of receipts and transactions to determine if an out-of-state business falls below or above the thresholds during the 4-quarter look-back period.  For example, is a monthly subscription to the “Book of the Month Club” by a New York resident one transaction or twelve?  The Notice indicated additional guidance will be forthcoming.

What is clear is that any businesses that did not believe they faced sales tax obligations in New York because they did not have physical nexus cannot operate under that illusion anymore.  If an out-of-state business has exposure, it can take preemptive action and seek a limited look-back period and avoid penalties by participating in New York’s voluntary disclosure program.

If you operate a business and are concerned about past or prospective compliance with laws in New York or other states, you should not hesitate to contact a competent tax professional to seek advice on how to best address these issues.

 

This past weekend, as part of passing New Jersey’s 2019 budget, Governor Murphy signed into law a series of changes to the state tax laws. These changes have will have a disproportionate effect on the state’s highest earners and corporations. These affected taxpayers will undoubtedly look for alternative structures to mitigate the impact of the new laws.

This relatively small group of high earners pegged to contribute to this spending plan is still reeling from the stunning blow delivered to New Jersey residents by Congress through the virtual elimination of the SALT deduction. The only question that remains is how many members of that group will seek refuge to states that do not levy a personal income tax and have much lower property and franchise taxes.

How these aggressive tax policies will attract new corporations and high net worth persons to New Jersey is also of significant concern for the state’s long-term fiscal growth and prosperity.

Below is a list of changes to the Gross Income Tax, Sales Tax, Corporate Business Tax and a new Tax Amnesty Program that are intended to increase revenue to pay for the state’s new spending plan.

Gross Income Tax

  • Top income tax bracket of 10.75 percent for income exceeding $5 million.
  • Employers that are subject to the state’s income tax withholding requirements to withhold 15.6 percent on salaries and wages in excess of $5 million for tax year 2018.
  • Eliminates an exclusion from New Jersey source income (for nonresidents) for carried interest/income from providing investment management services and imposes a 17 percent surtax on such management income for Gross Income Tax and Corporation Business Tax purposes.
  • Eliminates tax exemption provided to pass-through entities receiving and selling Grow New Jersey credits.

Sales Tax

  • Sales tax nexus of: $100,000 in taxable sales or 200 or more separate transactions.
  • Sales tax collection and reporting requirements on a “marketplace facilitator,” which is defined to mean any person or business that provides a forum to a retailer to advertise, promote and list the retailer’s products and that also collects receipts from the customer and remits payment to the retailer.

Corporation Business Tax (CBT)

  • For corporations with allocated net income of more than $1 million annually other than public utilities, the new law imposes a surtax of 2.5% for tax years beginning on or after January 1, 2018 through December 31, 2019 and 1.5% for tax years beginning on or after January 1, 2020 through December 31, 2021.
  • For tax years beginning after December 31, 2016, the 100% dividends-received-deduction (“DRD”) for dividends paid to the taxpayer by one or more subsidiaries owned by the taxpayer (if more than 80% ownership defined by voting power) is reduced to 95 percent for 80 percent-owned subsidiaries.
  • The law also only allows a deduction for interest paid to a foreign related member if the related member is in a foreign country with a comprehensive US tax treaty in place and is subject to tax in the foreign country at an effective rate within three percentage points of the New Jersey rate.
  • The law changes the sourcing rules for certain service providers that operate in and out of New Jersey. Under the new law, the service is sourced to the location where the benefit is received and not where the service is performed. If the benefit is received in more than one state, reasonable approximation may be used. For individuals, the default sourcing rule is the customer’s billing address; for others it could be the location from where the services are ordered in the customer’s regular course of operations or the billing address if the location from where the order was made is unavailable.
  • No deduction is allowed for the deduction under IRC Section 965. This section requires a taxpayer to be taxed on a deemed dividend for deferred foreign income and provides for a deduction to achieve the lower repatriation tax rate. This deduction will not be relevant to the calculation of CBT. Likewise, the deduction provided in new IRC Section 199A, which acts to minimize income from flow-through entities, will have no effect on the CBT. Aside from clarifying the states’ position on these Federal changes, these will ensure that there is no reduction in revenue because of the new Federal tax laws.

Tax Amnesty

  • A 90-day tax amnesty period to run through no later than January 15, 2019.
  • Under the new amnesty program, any taxpayer with liabilities for returns due on or after February 1, 2009, can pay the tax, plus half the interest due as of November 1, 2018 and avoid any penalties with the exception of criminal and civil fraud penalties.

Many of our clients are evaluating the impact of the latest tax changes by asking their accountants to run individual and corporate projections to assess the impact for 2018, 2019 and beyond. Many are also contemplating taking up residence in lower tax jurisdictions such as Florida.

Our next blog post will detail the feasibility of achieving non-resident status (only paying tax on New Jersey source income) while maintaining a residence in New Jersey, but avoiding New Jersey tax on your worldwide income by becoming a permanent resident of Florida.